Age Discrimination and Redundancy: Loxley v BAE Systems (Munitions & Ordnance) Limited * [2008] ICR 1348; [2008] IRLR 853 (EAT) * MacCulloch v Imperial Chemical Industries plc * [2008] ICR 1334; [2008] IRLR 846 (EAT) * Rolls-Royce plc v Unite the Union * [2009] IRLR 49 (QB)

Abstract

The introduction into the domestic legal framework in 2006 of legislation rendering unlawful direct and indirect discrimination on grounds of age was seen by some as sounding the death knell for, or at least raising serious doubts about the viability and longevity of, the application of age-related criteria in redundancy exercises, for example, in relation to selection or the calculation of enhanced redundancy payments. The decisions which this note analyses throw some light on how, in the particular context of redundancy situations, employment tribunals should approach the defence of justification of what would otherwise be unlawful age discrimination against the background of the inevitably open-textured nature of the concept which is central to that defence—the achievement or fulfilment of a legitimate aim by proportionate means.1 While the relevant EU Directive provides specific examples of situations in which age discrimination may be justified and the Government originally intended to legislate on the basis of an exhaustive list of potentially justifiable age restrictions, the matter was ultimately left ‘open-ended’ to be considered on an ex-post basis2. This approach renders all the more important the provision of guidance to employment tribunals (and therefore by extension employers) on their approach to the issue of the establishment of justification.